California Reformers: Beware of Paying for Attorney's Fees

Last week a California superior court judge ruled that a group of plaintiffs who unsuccessfully challenged California's new open primary, top-two election law should pay the attorney's fees of those arguing in favor of the law's validity. The price tag for those fees is close to one quarter million dollars.

Our story begins back in June of 2010 when California voters passed Proposition 14. That measure created our current open primary, top-two election system. In the primary election any voter can vote for any candidate, regardless of party affiliation. In the general election the two candidates who receive the most votes, again regardless of party affiliation, compete. The purpose of this measure was, in part, to elect more moderate lawmakers. That goal may or may not be achieved.

After the ballot measure was passed it was very predictably challenged in court. Among the challenges are claims that the law impermissibly prohibits the counting of write-in votes and harms the rights of minor party voters and candidates. (I authored a lengthy law review article on this second claim).

In essence, Prop 14 may be problematic for minor parties for two reasons. First, minor party candidates are unlikely to be among the top-two voter getters, and therefore will not appear on the general election ballot. Second, the easiest way to remain a ballot-qualified party is to obtain a certain number of votes in the general election. If candidates do not appear in the general election then they will need to tread more difficult paths to remain ballot qualified. If parties lose that ballot qualified status then minor party candidates will be forced to designate their party preference as "no party preference" when in fact they do have such a preference.

Plaintiffs were unsuccessful in their challenge to Prop 14, and now they may be forced to pay a huge price for their decision by paying for the attorney's fees of those defending the measure. Interestingly, plaintiffs sued the state and then Charles Munger and other proponents of Prop 14 intervened in the suit and argued in favor of the measure. It is the intervenors, not the state, who asked for attorney's fees.

Awarding attorneys fees to the winning side of a case makes all the sense in the world when litigants bring a frivolous case or sue in bad faith. However, the position of the plaintiffs in the Prop 14 suit was, while ultimately unsuccessful, neither. The judge awarded the attorney's fees based on a finding that the suit did not vindicate a public interest.